Supreme Court Criminal Cassation No. 11765/2025: Failure to Transcribe Hearing Recordings Does Not Cause Nullity

In the complex landscape of criminal procedural law, the form and substance of procedural acts are of crucial importance. Every step, every record, every documentation must meet precise legal requirements to ensure the validity of the proceedings and the protection of the parties' rights. But what happens when a formality, such as the transcription of hearing recordings, is omitted? The recent judgment No. 11765, filed on March 25, 2025, by the Supreme Court of Cassation, Section 2, offers a fundamental clarification, reaffirming the principle of the exhaustiveness of nullities and outlining the boundaries within which an omission can or cannot invalidate an act.

The Heart of the Matter: Judgment 11765/2025

The ruling in question arose from a case where the defense of the defendant, G. P., had objected to the nullity of the appeal judgment issued by the Court of Appeal of Naples. The objection concerned the violation of his rights, pursuant to Article 178, paragraph 1, letter c), of the Code of Criminal Procedure. Specifically, the defense complained that the case file, with reference to the testimony of the injured party, contained only a summary record and not the verbatim transcript, i.e., the complete and faithful transcription of the recordings. The absence of such a transcription, according to the defense, would have compromised the full understanding of the acts and, consequently, the right to defense.

The Supreme Court of Cassation, presided over by A. P. and with M. T. M. as rapporteur, was called upon to rule on the validity of this objection, assessing whether the omission to transcribe audio or audiovisual recordings, as provided for by art. 139 of the Code of Criminal Procedure, could actually constitute a cause for nullity of the procedural acts performed during the hearing.

The Exhaustiveness of Nullities and Key Articles of the Code

The Italian criminal procedural system is based on rigorous principles, among which the principle of the exhaustiveness of nullities stands out. This means that a procedural act can be declared null only in cases expressly provided for by law. Article 178 of the Code of Criminal Procedure lists general nullities, including those relating to the intervention, assistance, and representation of the defendant (letter c), often invoked to protect the right to defense. Article 139 of the Code of Criminal Procedure, on the other hand, governs the documentation of acts through sound or audiovisual recording, establishing that, in case of use of these means, transcription is ordered only if necessary.

The crucial issue, therefore, was to determine whether the omission of transcription, even in the presence of a recording, fell within one of the expressly provided cases of nullity. The Court of Cassation, in line with previous rulings (such as No. 39656 of 2002 Rv. 222731-01 and Joint Sections No. 12778 of 2020 Rv. 278869-03), answered in the negative. The summary of the judgment unequivocally clarifies this principle:

In matters of documentation of acts, the omission to transcribe recordings, referred to in art. 139 of the Code of Criminal Procedure (sound or audiovisual recording), is not a cause for nullity of the acts performed during the hearing, nor does the principle of the exhaustiveness of causes of nullity allow for the application of such procedural sanction in cases where it is not normatively provided for. (Case in which the defense had objected to the nullity of the appeal judgment for violation of its rights ex art. 178, paragraph 1, letter c), of the Code of Criminal Procedure, given that in the case file, with regard to the testimony of the injured party, only a summary record and not the verbatim transcript was found).

This statement is significant. The Court emphasizes that, although sound or audiovisual recording is a means of documentation, its transcription is not an indispensable requirement for the validity of the acts, unless the law itself expressly provides for it as a cause of nullity. The mere fact that a summary record is present, rather than a verbatim transcript, is not sufficient to declare the act null, as art. 139 of the Code of Criminal Procedure does not elevate transcription to a condition of validity.

Practical Implications for Defense and Justice

Judgment No. 11765/2025 reiterates a cornerstone principle of our judicial system: the certainty of law and the stability of procedural acts cannot be called into question for every single formal imperfection not expressly sanctioned by law. The implications for lawyers, judges, and ultimately, for citizens involved in criminal proceedings are clear:

• Focus on substance: The validity of procedural acts is guaranteed as long as omissions do not substantially and irremediably compromise fundamental rights, and only if such compromise is expressly provided for as a cause of nullity.
• Importance of the summary record: The summary record retains its full evidentiary and documentary effect, unless its inaccuracy or incompleteness is proven in such a way as to violate the right to defense and to fall within a specific provision for nullity.
• Principle of exhaustiveness: The Court of Cassation reinforces the principle that nullities cannot be extended by analogy or by extensive interpretation, thus ensuring greater predictability of procedural outcomes.
• Request for transcription: The possibility of requesting the transcription of recordings remains a tool available to the parties, but its omission ex officio does not automatically generate nullity if not provided for by the norm.

Conclusions: Balance Between Form and Substance in Proceedings

Judgment No. 11765/2025 of the Criminal Court of Cassation represents an important piece in the jurisprudence concerning the documentation of acts and the regime of nullities. It confirms the consolidated orientation that favors the substance of the right to defense and the functionality of the proceedings, without, however, diminishing the importance of forms. The message is clear: procedural guarantees are sacred, but they must be interpreted and applied in compliance with the principle of the exhaustiveness of nullities, preventing mere formal omissions, not sanctioned by law, from paralyzing the administration of justice. For the Law Firm, this ruling underscores the importance of a deep knowledge of procedural rules and consolidated jurisprudence, in order to know when and how to assert the rights of their clients with maximum effectiveness.